Citation Nr: 1138444
Decision Date: 10/14/11 Archive Date: 10/19/11
DOCKET NO. 06-25 007A ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Cleveland, Ohio
THE ISSUES
1. Entitlement to an initial rating in excess of 30 percent for post-traumatic stress disorder (PTSD).
2. Entitlement to a total rating based on individual unemployability due to service-connected disabilities (TDIU).
REPRESENTATION
Appellant represented by: Veterans of Foreign Wars of the United States
WITNESS AT HEARING ON APPEAL
Appellant
ATTORNEY FOR THE BOARD
T. Hal Smith, Counsel
INTRODUCTION
Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2010). 38 U.S.C.A. § 7107(a)(2) (West 2002 & Supp. 2010).
The Veteran served on active duty from September 1947 to September 1951.
Upon rating action in April 2005, service connection was established for PTSD, and a 30 percent rating was assigned, effective from October 15, 2004.
In September 2010 the Board denied the Veteran's claims for entitlement to an initial evaluation in excess of 30 percent for PTSD and for a TDIU. The Veteran appealed to the United States Court of Appeals for Veterans Claims (Court). In a March 2011 Order, the Court granted the VA General Counsel's and Appellant's Joint Motion For Remand. The Board's decision was vacated and the Veteran's claim was remanded to the Board. The Order called for the initial rating claim to be remanded in that the Board failed to provide an adequate statement of reasons or bases to support its decision as it limited its review to the 50 percent criteria and did not discuss the rating criteria applicable to either a 70 or 100 percent rating. Moreover, the applicability of staged ratings was not adequately discussed. As to the TDIU claim, the Court noted that the Board erred in not specifically accounting for the combined effects of all of the Veteran's service-connected conditions.
FINDINGS OF FACT
1. For the period from October 15, 2004, through December 16, 2009, the Veteran's PTSD was manifested by depression, anxiety, irritability, social isolation, sleep impairment, difficulty with social and industrial interactions, hypervigilance, and flashbacks. The symptoms produced occupational and industrial impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks.
2. From December 17, 2009, the Veteran's PTSD is manifested by depression, anxiety, irritability, social isolation, sleep impairment difficulty with social and industrial interactions, hypervigilance, and flashbacks. The symptoms produce occupational and social impairment with reduced reliability and productivity.
3. The evidence of record, on balance, establishes that the Veteran has been unable to secure or follow a substantially gainful occupational on account of his service-connected disabilities during the entire appeal period.
CONCLUSIONS OF LAW
1. For the period from October 15, 2004, through December 16, 2009, the criteria for an initial rating in excess of 30 percent for PTSD have not been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.159, 4.1, 4.7, 4.130 Diagnostic Code (DC) 9411 (2010).
2. From December 17, 2009, the criteria for a 50 percent evaluation for PTSD, but not higher, have been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.159, 4.1, 4.7, 4.130 Diagnostic Code (DC) 9411 (2010).
3. The criteria for entitlement to a TDIU have been met during the entire appeal period. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2009); 38 C.F.R. §§ 3.159, 4.1, 4.16, 4.19, 4.25 (2010).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
Duties to Assist and Notify
The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002 & Supp. 2010) redefined VA's duty to assist the Veteran in the development of a claim. VA regulations for the implementation of the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2010).
As to the issue of entitlement to an initial rating in excess of 30 percent for PTSD, this appeal arises from disagreement with an initial evaluation following the grant of service connection. The courts have held that once service connection is granted the claim is substantiated, additional VCAA notice is not required; and any defect in the notice is not prejudicial. Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007).
As to the claim for a TDIU, the Court has elaborated that filing a notice of disagreement begins the appellate process, and any remaining concerns regarding evidence necessary to establish a more favorable decision with respect to downstream elements (such as an effective date) are appropriately addressed under the notice provisions of 38 U.S.C.A. §§ 5104 and 7105. Goodwin v. Peake, 22 Vet. App. 128 (2008). Where a claim has been substantiated after the enactment of the VCAA, the appellant bears the burden of demonstrating any prejudice from defective VCAA notice with respect to the downstream elements. Id. There has been no allegation of prejudice with regard to the notice in this case; hence, further VCAA notice is not required with regard to the initial rating appeals. Despite this, the Board notes that the Veteran received VCAA notice in letters mailed in November 2004 and April 2005. The VCAA requires VA to make reasonable efforts to help a Claimant obtain evidence necessary to substantiate his claim. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c), (d). This "duty to assist" contemplates that VA will help a claimant obtain records relevant to his claim, whether or not the records are in Federal custody, and that VA will provide a medical examination or obtain an opinion when necessary to make a decision on the claim. 38 C.F.R. § 3.159(c)(4) (2010). Moreover, considering the claim on appeal in light of the above-noted legal authority, and in light of the Board's favorable disposition of this matter, the Board finds that all notification and development action needed to fairly resolve the claim for a TDIU has been accomplished.
VA has obtained records of treatment reported by the Veteran, including private and service treatment records (STRs). Additionally, the Veteran has been provided numerous VA examinations during the pendency of this appeal. And he provided testimony at a personal hearing. It is therefore the Board's conclusion that no further notice or assistance to the Veteran is required to fulfill BVA's duty to assist him in the development of the claims. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd 281 F3d. 1384 (Fed Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002).
For the reasons set forth above, the Board finds that VA has complied with the VCAA's notification and assistance requirements. The appeal is thus ready to be considered on the merits.
Factual Background
VA treatment records show that in August 2004, the Veteran had a PTSD screen during a physical and was referred to psychiatry. Thereafter he was treated for his PTSD via prescribed medication and participating in group and individual therapy for PTSD. In June 2004, mental status examination showed he appeared depressed and his affect was flat.
On VA examination in December 2004, the Veteran reported his primary treatment for PTSD was group therapy over the last few months. He reported that after college he went to the Ford Motor Company, worked there for approximately fourteen years, and retired from there 19 years ago. He reported his first wife died in 1998 after 45 years of marriage, and he had been remarried for one and a half years. Both marriages were emotionally satisfying and his spouses were supportive of his emotional difficulties. He had five children, eight grandchildren, and four great-grandchildren. He claimed he was in touch with his family and had only positive feelings about his family, children, grandchildren, and friends. He reported sleep problems, hypervigilance, crying spells, isolating behaviors, paranoia, checking behaviors, and irritability. He had nightmares two times a week. He reported that his new wife's support of him had decreased his irritability somewhat. He had good peer relationships despite having ongoing isolating behaviors related to PTSD, and even had several childhood friends. He was a member of the Marine Corps League and the VFW, and attended social events at the VFW. His employment history had been fairly consistent with the addition of working at a factory called PAPCO prior to his going to Ford Motor Company. He had good relationships and social interactions with family and friends although he tended to isolate at times. He had few leisure pursuits, but liked to tinker with electricity and used this skill to help his neighbors and friends. He had assaulted another driver two years prior. He gave away all of his guns two years prior, related to thoughts of self-harm, but currently had no desire to hurt himself.
Further, on the VA examination in December 2004, the examiner noted that the Veteran became a supervisor at Ford Motor Company and after more than 10 years there he became physically unable to do his job and was able to retire. On mental status examination, he was cooperative and had fair eye contact. He was alert and oriented and no overt delusions or hallucinations were revealed. He denied suicidal or homicidal ideation. He appeared to have good personal hygiene. He reported ritualistic behaviors including checking lights and locks. His speech was of normal rate and rhythm, although at times slow and deliberate when talking about Korea. He did not have overt panic attacks but did become nervous in large stores. He gave a positive response when asked about depression and he had some impulse control problems more specifically around road rage. His sleep was restless but totaled 8 hours a night. Chronic PTSD was diagnosed and a Global Assessment of Functioning (GAF) score of 62 was assigned with current dysphoric mood, with depression, mild insomnia, and functioning very well overall and having meaningful relationships.
VA treatment records show that in April 2005, the Veteran was seen for medication management by psychiatry and reported irritability, being argumentative, having a history of fist fights, sleep disturbances, nightmares and recurrent memories. Mental status examination showed he had good eye contact, his demeanor was open and cooperative, his psychomotor activity was normal, his mood was dysphoric, his affect was irritable, his speech was of normal rate, volume, and production; there were no delusions or hallucinations, no hopeless, helpless, or worthless verbalizations present, and no suicidal or homicidal thoughts. Reality testing appeared normal, and insight and judgment were good. In June 2005, he reported some marital conflict due to his drinking. He reported he did not have problems with employment or supervising people, as he was a supervisor for Ford Motor Company in the foundry. He reported retiring at age 55.
In a statement received in June 2005, the Veteran reported he had flashbacks and intrusive thoughts, and that his work, social ability, thinking, mood, and relations were impaired. He reported having extreme irritability and violent thoughts, and suffered from panic attacks that significantly interfered with his thinking, ability to understand, his memory, and his social interactions. He claimed he was uncommitted and uncaring of others' social needs and wants. With regard to unemployability, the Veteran reported that the effects of PTSD can be cumulative and manifest immediately or over time. He also claimed that his ability to work at any point in time was not relevant to whether he could work now. He reported having additional disabilities that contributed to his inability to hold gainful employment - including his cold injuries.
VA treatment records showed that in December 2005, the Veteran felt more relaxed and calm in Florida in the two months prior, and he felt happier there. He reported nightmares two to three times a month. In April 2006 the Veteran reported he was more relaxed and calm in Florida, and on examination his mood was euthymic, his affect was appropriate, and his cognitive status appeared intact.
On a VA examination in April 2007, the examiner opined that the Veteran's current service-connected disability of cold injury residuals did not prevent him from gainful employment. On a VA psychiatric examination in April 2007, the Veteran reported he retired at age 55, after 15 years as a maintenance manager. He reported he retired from Ford Motor Company due to irritability and agitation, "as he worked 125 days straight at a ten-hour-per-day work week." He also claimed that he had a non-supportive staff and that his management had no recourse. He reported that since he retired he had continued the positive relationships with his family and children that he had established over his working years. He denied PTSD symptoms that interfered with the quality of interpersonal relationships with his family. He reported his recent marriage four years prior was a positive thing because he was a widower. He claimed his PTSD symptoms were quieted with work because he could focus on his job and block out other symptoms which caused him undue emotional discomfort. He claimed he worked many hours and had few leisure pursuits, but did like to participate in building and fixing things. He described his work history after service, and cited several incidents at work during which he assaulted one of his employees, but indicated this did not have formal consequences. He also reported multiple contained outbursts, but was able to stay gainfully employed in that he contained his physical upset and did not strike out. On mental status exam he maintained fair eye contact and his speech was clear and goal-oriented. He denied suicidal or homicidal ideation, no excessive ritualistic behaviors were noted, and there was no evidence of panic attacks. He appeared to have fair insight. He became less animated and had clenched teeth with a raised voice when he described his military traumatic episodes. The diagnosis was chronic PTSD and a GAF score of 65 was assigned. The examiner noted that the Veteran had mild symptoms with his ongoing insomnia and dreams related to his military history, but he was functioning and having meaningful interpersonal relationships.
VA treatment records dated from 2007 through 2009 show that the Veteran received ongoing group therapy and medication, for treatment of his PTSD. In October 2008, he reported he had an improved mood and less anxiety, and was not feeling hopeless or having suicidal thoughts. He had no impulsive or aggressive behavior and was sleeping well. In December 2008, he reported continued improvement with medication. He felt calmer, was not as irritable, and his wife felt he was better and easier to be around. He had some depression with winter, with the darkness and cold reminding him of Korea. He was looking forward to going to Florida. He had restless sleep and sweats often, but his nightmares were less frequent and less intense. He avoided war shows and stories that could trigger memories. On examination he had good eye contact, was open and cooperative, his psychomotor activity was normal and his mood was euthymic. His affect was appropriate, speech was normal, and he had no delusions, hallucinations, or suicidal or homicidal thoughts. His cognitive status was intact and insight and judgment were good. In November 2008 and May 2009 a GAF score of 55 was noted.
In May 2009 the Veteran testified that he was having deficiencies in his family relations and work, claiming he had unprovoked irritability and panic attacks. He reported periods of violence and claimed he could not establish relationships because he did not trust people. He testified that his irritability had become worse. He testified he was in Florida for three months and that while he was there his relationship with his wife was soothing and he was able to sit and relax. He testified that the only people he talked to in Florida were other Marine Corps Veterans, because those were the only people he could deal with and trust. He attended PTSD classes at the Sarasota Veterans Center, and was to start the same type of treatment now that he was back in Ohio. He testified he would pick up a Navy Veteran who had eyesight problems and transport him there and back. He essentially testified that the snow in Ohio was distressing to him because he had to fight in the snow and cold when in service.
VA treatment records show that on December 17, 2009, the Veteran reported marital conflict because his wife did not like his drinking. He appeared to have a low mood, was mildly irritable, and jumpy, and still had intrusive memories and guilt. He had nightmares two to three times a month, and teared up easily at memories of war. He was bored with the winter weather and recalled fighting in Korea when he got frostbite, and was looking forward to going to Florida during the winter. His PTSD was noted to be improved with medication, but he complained of an anniversary reaction that month with anxiety, insomnia, and alcohol dependence (noted to be in remission since 2007).
On VA examination on December 17, 2009, it was noted that the Veteran participated in monthly psychotherapy for his PTSD, and had recently begun individual psychotherapy at a local Vet Center due to exacerbation of his PTSD symptoms. He reported feeling unable to cope as effectively as he could before he retired. He spoke highly of his wife, and although he had increased interpersonal relationships, he still complained of intrusive thoughts and memories of traumatic combat experiences. He described a serious decline in socialization and psychological functioning due to excessive avoidance of people, crowds, and pleasurable activities. He denied socializing at the activities he attended, such as the VFW club for coffee, and often confronted others for saying stupid stuff. He struggled with activities outside the home without his wife. He sat with his back to the wall in restaurants, and only had lunch with his best friend once a month. He complained, with tearfulness, of violence and the current state of affairs on television, and aggressively described with clenched teeth how he came "unglued" if a cup fell off the table. He did not like crowds and was unable to attend football games or go to a movie. He could not handle fireworks, movies related to combat, violent television shows, or any loud noises. While his health led to increased impairment in all areas of functioning, he indicated that idle time had increased his crying spells and anxiety related to flashbacks and intrusive memories at least two to three times a week. He complained that each situation that induced anxiety also increased his symptoms of anger, and he described that one year prior he assaulted a complete stranger in a parking lot after being cut off on the freeway. He reported that he had assaulted others many times related to uncontrollable anger, irritability, and road rage, without legal consequences. He tried to distract himself from bad thoughts, but when the flashbacks started to come, he felt that he was on fire inside and burning up. He reported having heart palpitations, shortness of breath, and felt as if he was having a heart attack. He attempted to distract himself by going for drives with his wife and taking deep breaths. He claimed these episodes occurred three to four times a month. He complained of excessive tearfulness and depression.
Further, on the mental status examination in December 2009, the Veteran was found to have appropriate eye contact with intermittent tearfulness, and his hygiene was appropriate. His facial expressions were labile, animated, and he showed extreme expressions of anger and tearfulness. His manner was cooperative and polite, but he was animated and shaking and pounding his fists when angry discussing military experiences or other activities that made him mad. His speech was of normal rate and rhythm. He reported he was always pissed off. The examiner indicated that the Veteran had moderate to serious anxiety, an irritable mood, and his affect was congruent. He was oriented in all spheres and focused, had goal-directed answers to questions, and was pre-occupied with military experiences and people, places, and things that made him angry. He had intrusive memories, but no delusions or hallucinations or suicidal ideation. It was noted that he had a history of assaultive behavior, but denied homicidal ideation related to a specific person. His judgment was intact, and his insight was minimal. The examiner noted that the Veteran's history of PTSD related to his combat experiences during the Korean War appeared to be a comorbid diagnosis with major depressive disorder. The diagnoses were PTSD and major depressive disorder, recurrent, moderate. A GAF score of 50 was assigned, and it was noted that his highest GAF score the prior year was 60. The examiner explained that the GAF score of 50 was because of his serious inability to maintain psychological wellness and the severe frequency and intensity of PTSD symptoms.
Finally, on the VA examination in December 2009, the examiner provided an assessment of the effects of PTSD on the Veteran's occupational and social functioning. The examiner opined that the Veteran's mental health symptoms would likely cause serious to major discomfort when interacting with other people, and moderate reduced communication. His moderate to severe level of anxiety and inner turmoil would likely cause significant work inefficiency and lack of productivity regardless of age and health. The amount of tension, rumination, excessive guilt, and anger management problems would likely cause serious reduced reliability. His avoidance of social contact and confrontation would likely interfere seriously with his ability to interact effectively. His logical thinking appeared adequate, and would not likely impact his social or vocational functioning. He had severe reduction in his ability to adapt to stressful circumstances in the workplace. He did not have gross impairment of thought processes, delusions, or hallucinations. He was not a danger to himself or others, but his assaultive behavior was related to an inability to appropriately manage anger outburst and irritability.
Increased Ratings - In General
Disability evaluations are based upon the average impairment of earning capacity as determined by a schedule for rating disabilities. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. Part 4 (2010). Separate rating codes identify the various disabilities. 38 C.F.R. Part 4.
In determining the current level of impairment, the disability must be considered in the context of the whole-recorded history, including STRs. 38 C.F.R. §§ 4.2, 4.41 (2010). The determination of whether an increased evaluation is warranted is based on review of the entire evidence of record and the application of all pertinent regulations. See Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (2010).
An evaluation of the level of disability present also includes consideration of the functional impairment of the Veteran's ability to engage in ordinary activities, including employment, and the effect of pain on the functional abilities. 38 C.F.R. §§ 4.10, 4.40, 4.45, 4.59 (2010); DeLuca v. Brown, 8 Vet. App. 202, 204-06 (1995).
Under the laws administered by VA, the Secretary shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107 (West 2002 & Supp. 2009); 38 C.F.R. § 4.3 (2010).
A claim placed in appellate status by disagreement with the original or initial rating award (service connection having been allowed) but not yet ultimately resolved, as is the case herein, remains an "original claim" and is not a new claim for increase. Fenderson v. West, 12 Vet. App. 119 (1999). In such cases, separate compensable evaluations may be assigned for separate periods of time, but only if such distinct periods are shown by the competent evidence of record during the pendency of the appeal, a practice known to the Court as "staged" ratings. Id. at 126.
DC9411
Under the general rating formula for the evaluation of mental disorders, 38 C.F.R. § 4.130, DC 9411, PTSD will be rated as follows:
Total occupational and social impairment, due to such symptoms as: gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; memory loss for names of close relatives, own occupation, or own name. - 100 percent
Occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, due to such symptoms as: suicidal ideation; obsessional rituals that interfere with routine activities; speech intermittently illogical, obscure, or irrelevant; near-continuous panic or depression affecting the ability to function independently, appropriately and effectively; impaired impulse control (such as unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a worklike setting); inability to establish and maintain effective relationships. - 70 percent
Occupational and social impairment with reduced reliability and productivity due to such symptoms as: flattened affect; circumstantial, circumlocutory, or stereotyped speech; panic attacks more than once a week; difficulty in understanding complex commands; impairment of short- and long-term memory (e.g., retention of only highly learned material, forgetting to complete tasks); impaired judgment; impaired abstract thinking; disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationships. - 50 percent
Occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks (although generally functioning satisfactorily, with routine behavior, self-care, and conversation normal), due to such symptoms as: depressed mood, anxiety, suspiciousness, panic attacks (weekly or less often), chronic sleep impairment, mild memory loss (such as forgetting names, directions, recent events). - 30 percent
The Global Assessment of Functioning (GAF) is a scale reflecting the "psychological, social, and occupational functioning in a hypothetical continuum of mental health- illness." [citing the American Psychiatric Association's DIAGNOSTIC AND STATISTICAL MANUAL FOR MENTAL DISORDERS (4th ed.), p.32.] GAF scores ranging from 51 to 60 reflect moderate symptoms (e.g., flat affect and circumstantial speech, occasional panic attacks) or moderate difficulty in social, occupational, or school functioning (e.g., few friends, conflicts with peers or co-workers).
GAF scores ranging between 61 to 70 reflect some mild symptoms (e.g., depressed mood and mild insomnia) or some difficulty in social, occupational, or school functioning (e.g., occasional truancy, or theft within the household), but generally functioning pretty well, and has some meaningful interpersonal relationships.
Analysis for Claim for Higher Rating for PTSD
The Veteran is currently rated as 30 percent disabling for PTSD pursuant to DC 9411. The Board notes that the evidence of record consistently shows that his affect has been appropriate and his speech normal. He consistently has had no delusions, hallucinations, or suicidal thoughts. His anger has resulted in homicidal thoughts, but these were not directed to a specific person. His cognitive status has essentially been intact and congruent, and his insight and judgment have been relatively good. No examiner has reported impairment of thought process, nor has psychosis been observed. The Veteran has required no inpatient psychiatric treatment. He has exhibited symptoms of irritability and anxiety, as well as sleep disturbance and isolation. In May 2009, the Veteran reported increased irritability and panic attacks. The increase in symptoms was corroborated at the time of VA examination on December 17, 2009, to include a lower GAF score.
By applying the Veteran's psychiatric symptomatology to the rating criteria noted above, the Board concludes that a rating in excess of 30 percent is not warranted for the period from October 15, 2004, through December 16, 2009. However, it is concluded that upon VA examination on December 17, 2009, the criteria for a 50 percent rating, but no higher, are met.
In more detailed explanation, it is noted that for the period from October 15, 2004, through December 16, 2009, the record reflects that the Veteran experienced symptoms from both the 30 and 50 percent rating criteria. The descriptions of his symptoms on various exams and outpatient treatment records reasonably show that his PTSD resulted in occupational and social impairment with occasional decrease in work efficiency and intermittent period of inability to perform occupational tasks (although generally functioning satisfactorily). The clinical findings of record describe experiences, thoughts, and emotions due to the Veteran's PTSD that interfere in his daily functioning and relationships with others. Specifically, anxiety and chronic depression significantly affect the Veteran's ability to establish and maintain effective work and social relationships. So although he retired many years ago from employment and continues to have familial relationships, it is clear that these relationships are somewhat strained by his level of anxiety, irritability, and anger, and tendency toward social isolation. However, the symptoms for an increased rating for PTSD are not met from October 15, 2004, until VA examination on December 17, 2009. An increase in symptoms was shown in the report of the December 2009 VA examination. There was report of increased irritability, and he described a serious decline in socialization and psychological functioning due to excessive avoidance of people, crowds, and pleasurable activities. Idle time had increased his anxiety and crying spells, his anger had increased in severity. His GAF score also indicated increased symptoms.
Thus, in evaluating all of the evidence of record, the Board finds that the Veteran's symptoms more nearly approximate moderate to severe social and occupational impairment, or a 50 percent disability rating, but no higher, as of December 17, 2009. While his ability to maintain social contacts is diminished, it is not productive of the complete inability to establish or maintain effective relationships of a severity that is indicative of a 70 percent rating. The Board also acknowledges the Veteran's problems with assaultive behavior, but noted that any homicidal ideation was not directed to a specific person. Although his constant anxiety is another relevant consideration in evaluating the extent of psychiatric disability, this was most often described as moderate to moderately severe and by the Veteran's own admission, his symptoms had improved with medication (see the December 2009 report).
Symptoms required for a higher 70 percent evaluation are neither complained of nor observed by medical health care providers, including obsessional rituals, illogical, obscure, or irrelevant speech, or impaired impulse control. The medical evidence largely demonstrates that the Veteran presented with appropriate affect. There is no evidence of psychotic symptoms or cognitive deficits. In general, he has been adequately groomed and able to take care of himself physically. The evidence also does not show spatial disorientation - the substantial weight of the evidence shows that he was alert and oriented in all spheres. Such findings are consistent with the rating criteria required for a 50 percent evaluation, and do not approximate the criteria required for assignment of a 70 percent or higher evaluation.
Total occupational and social impairment, due to such symptoms as gross impairment in thought processes or communication, persistent delusions or hallucinations, grossly inappropriate behavior, persistent danger of hurting self or others, and intermittent inability to perform activities of daily living , disorientation to time or place, or memory loss or relatives, are not demonstrated at any time in the medical records. Thus, current symptoms also do not approximate the criteria required for assignment of a 100 percent evaluation.
In reaching this determination, the Board notes that various VA medical personnel, who have examined the Veteran on an outpatient basis for treatment purposes or have evaluated him to assess the nature, extent and severity of his service-connected PTSD, have estimated GAF scores between 50 and 62. The most recent score of 50 denotes serious symptoms (e.g., suicidal ideation, severe obsessional rituals, frequent shoplifting) or serious impairment in social and occupational functioning (e.g., no friends, unable to keep a job). Carpenter v. Brown, 8 Vet. App. 240, 242 (1995); Richard v. Brown, 9 Vet. App. 266, 267 (1996). Therefore, this GAF score is consistent with the symptomatology noted, and does not provide a basis for assignment of a higher rating for the Veteran's PTSD.
The current levels of disability shown are encompassed by the rating now being assigned herein and, with due consideration to the provisions of 38 C.F.R. § 4.7, an even higher evaluation is not warranted for any portions of the time periods under consideration. The Board has considered staged ratings, under Fenderson v. West, supra. In that regard and as noted above, the Board has determined that a rating in excess of 30 percent for PTSD is not warranted for the period from October 15, 2004, through December 16, 2009. However, as of December 17, 2009, the criteria for a 50 percent disability rating for PTSD are met. A rating in excess of 50 percent, however, is not warranted. All reasonable doubt was resolved in the Veteran's favor to reach these conclusions.
TDIU
It is the established policy of VA that all Veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities shall be rated totally disabled. 38 C.F.R. § 4.16 (2010). A finding of total disability is appropriate "when there is present any impairment of mind or body which is sufficient to render it impossible for the average person to follow a substantially gainful occupation." 38 C.F.R. §§ 3.340(a)(1), 4.15 (2010).
"Substantially gainful employment" is that employment "which is ordinarily followed by the nondisabled to earn their livelihood with earnings common to the particular occupation in the community where the veteran resides." Moore v. Derwinski, 1 Vet. App. 356, 358 (1991). "Marginal employment shall not be considered substantially gainful employment." 38 C.F.R. § 4.16(a) (2010). The Court noted the following standard announced by the United States Eighth Circuit Court of Appeals in Timmerman v. Weinberger, 510 F.2d 439, 442 (8th Cir. 1975):
It is clear that the claimant need not be a total 'basket case' before the courts find that there is an inability to engage in substantial gainful activity. The question must be looked at in a practical manner, and mere theoretical ability to engage in substantial gainful employment is not a sufficient basis to deny benefits. The test is whether a particular job is realistically within the physical and mental capabilities of the claimant.
Moore, 1 Vet. App. at 359.
As noted above, a claim for a total disability rating based upon individual unemployability "presupposes that the rating for the [service-connected] condition is less than 100%, and only asks for TDIU because of 'subjective' factors that the 'objective' rating does not consider." Vettese v. Brown, 7 Vet. App. at 34-35.
In Hatlestad v. Derwinski, 1 Vet. App. 164 (1991), the Court referred to apparent conflicts in the regulations pertaining to individual unemployability benefits. Specifically, the Court indicated there was a need to discuss whether the standard delineated in the controlling regulations was an "objective" one based on the average industrial impairment or a "subjective" one based upon the veteran's actual industrial impairment. In a pertinent precedent decision, the VA General Counsel concluded that the controlling VA regulations generally provide that veterans who, in light of their individual circumstances, but without regard to age, are unable to secure and follow a substantially gainful occupation as the result of service-connected disability shall be rated totally disabled, without regard to whether an average person would be rendered unemployable by the circumstances. Thus, the criteria include a subjective standard. It was also determined that "unemployability" is synonymous with inability to secure and follow a substantially gainful occupation. VAOPGCPREC 75-91 (Dec. 27, 1991).
In determining whether unemployability exists, consideration may be given to the Veteran's level of education, special training and previous work experience, but not to his age or to any impairment caused by non-service-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19 (2010).
A total disability rating for compensation may be assigned, where the schedular rating is less than total, when the disabled person is, in the judgment of the rating agency, unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities, provided that, if there is only one such disability, this disability shall be ratable at 60 percent or more. If there are two or more disabilities, there shall be at least one disability ratable at 40 percent or more and the combined rating must be 70 percent or more. 38 C.F.R. § 4.16(a) (2010).
Pursuant to 38 C.F.R. § 4.16(b), when a Claimant is unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities, but fails to meet the percentage requirements for eligibility for a total rating set forth in 38 C.F.R. § 4.16(a), such case shall be submitted for extraschedular consideration in accordance with 38 C.F.R. § 3.321 (2010).
Analysis for Claim for a TDIU
The Veteran argues that he is unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities, which are likely to be permanent.
The Board notes that upon recent rating action in June 2010, service connection was established for residuals of cold injury to the left hand and arm. A 30 percent rating was assigned. Thirty percent ratings are also in effect for service-connected residuals of cold injury to the second digit of the right hand, residuals of cold injury to the right foot, and residuals of cold injury to the left foot. A noncompensable rating is also in effect for residuals of a gunshot wound to the left forearm. And, as indicated above, the Board has increased the disability rating in effect for PTSD to 50 percent, effective December 17, 2009. The combined rating is 90 percent, both before and after the increase for PTSD to 50 percent.
In the instant case the Veteran meets the schedular criteria for a TDIU pursuant to 38 C.F.R. § 4.16 due to his service-connected PTSD which has been evaluated as 30 percent disabling prior to December 17, 2009, and 50 percent disabling therefrom, and his other service-connected disorders (as summarized above) resulting in a combined rating of 90 percent. Thus, the Veteran meets the schedular criteria outlined in 38 C.F.R. § 4.16(a). Furthermore, at the time of the most recent VA examination in 2009, the examiner opined that the Veteran's moderate to severe level of anxiety and inner turmoil would likely cause significant work inefficiency and lack of productivity regardless of age and health. It was noted that his logical thinking appeared adequate and would not likely impact his social or vocational functioning, but review of the entire record reflects significant impairment in the ability to socialize normally with family, friends, or with others at work. The examiner opined that the Veteran had severe reduction in his ability to adapt to stressful circumstances in the workplace, but did not have gross impairment of thought processes, delusions, or hallucinations. However, he exhibited ongoing stress related to irritability, flashbacks, and occasional outbursts directed towards others.
It is also noted that recent cold injury residuals examination by VA in November 2009 showed cold sensitization of the hands and feet, to include numbness, tingling, some burning sensation, and some swelling. His pains were made worse with prolonged walking or standing, and cold weather exacerbated his condition. Exam showed decreased sensation in the hands and feet, and X-rays also showed degenerative changes in both.
Given that the Veteran meets the criteria outlined in 38 C.F.R. § 4.16(a), and resolving all doubt in his favor, the Board concludes that a TDIU is warranted during the entire period at issue. His inability to adapt to circumstances in the workplace and work with others, coupled with his inability to be physically active due to symptoms in his feet resulting from cold injury, lead the Board to conclude that his service-connected disabilities prevent him from obtaining and maintaining substantially gainful employment.
Other Considerations as to Both Claims
Also considered by the Board is whether the Veteran's PTSD warrants referral for extraschedular consideration. The above determinations are based on application of pertinent provisions of the VA's Schedule for Rating Disabilities. There is no showing that the Veteran's PTSD reflects so exceptional or unusual a disability picture as to warrant the assignment on an extraschedular basis of an evaluation higher than the 30 and 50 percent ratings currently in effect. See 38 C.F.R. § 3.321(b)(1) (2010). The effects of his PTSD on employment are already considered in the assignment of a TDIU. Moreover, the Veteran has never been hospitalized because of his PTSD, so as to otherwise render impractical the application of the regular schedular standards. Accordingly, referral for extraschedular consideration is not warranted at this time. Thun v. Peake, 22 Vet. App. 111, 115 (2008). In the absence of evidence of such factors, the Board is not required to remand the claim to the RO for the procedural actions outlined in 38 C.F.R. § 3.321(b)(1) (2010). See Bagwell v. Brown, 9 Vet. App. 337, 338-39 (1996); Floyd v. Brown, 9 Vet. App. 88, 96 (1996); Shipwash v. Brown, 8 Vet. App. 218, 227 (1995).
ORDER
An initial rating in excess of 30 percent for PTSD for the period from October 15, 2004, through December 16, 2009, is denied. However, a 50 percent rating for PTSD is granted as of December 17, 2009, subject to the provisions governing the award of monetary benefits.
A TDIU is granted during the entire appeal period; subject to the provisions governing the award of monetary benefits.
____________________________________________
BARBARA B. COPELAND
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs